JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
23 April 2015 (*)
(Community trade mark — Opposition proceedings — Application for Community figurative mark IGLOTEX — Earlier Community word mark IGLO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑282/13,
Iglotex SA, established in Skórcz (Poland), represented by I.-M. Helbig, P. Hansmersmann and S. Rengshausen, lawyers,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Schifko, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
Iglo Foods Group Ltd, established in Feltham (United Kingdom), represented initially by C. Hawkes, Solicitor, and subsequently by B. Brandreth and C. Hall, Barristers,
ACTION brought against the decision of the Second Board of Appeal of OHIM of 1 March 2013 (Case R 67/2012-2), relating to opposition proceedings between Iglo Foods Group Ltd and Iglotex SA,
THE GENERAL COURT (Ninth Chamber),
composed of G. Berardis (Rapporteur), President, O. Czúcz and A. Popescu, Judges,
Registrar: J. Weychert, Administrator,
having regard to the application lodged at the Court Registry on 22 May 2013,
having regard to the response of OHIM lodged at the Court Registry on 17 September 2013,
having regard to the response of the intervener lodged at the Court Registry on 9 September 2013,
further to the hearing on 27 November 2014,
gives the following
Judgment
Background to the dispute
1 On 29 July 2010, the applicant, Iglotex SA, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
2 The mark in respect of which registration was sought is the following figurative sign:
3 The goods for which registration was sought are in Classes 29 and 30 of the Nice Agreement concerning the International Classification of Goods and Services for the purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
– Class 29: ‘Meat; meat preserves; tinned meat; meat products; charcuterie; fish; frozen fish products; frozen fish; seafood; poultry; game; meat extract; preserved, frozen, dried and cooked, fruits and vegetables; frozen vegetables; mixed vegetables; potato crisps, edible jellies; fruit salads; jellies; jams; eggs; milk; dairy products; edible oils and fats; bouillon extracts; preserved mushrooms; processed mushrooms; cheese spreads; potato fries; potato chips, potato crisps; potato crisps; potato croquets; potato products; potato-based snack foods; potato flakes; soups; soup preparations; all the aforesaid goods in frozen and refrigerated form’;
– Class 30: ‘Coffee, tea, cocoa, sugar, artificial coffee; flour; confectionery; sugar confectionery; ice-cream; frozen yoghurts; edible ices; ice; powders for ice cream; water ices; chilled desserts; baking powder; spices; meat pies; frozen confections; gnocchi; perogies; dumplings; pyzy (potato dumplings stuffed with meat); kopytko (potato dumplings); gnocchi; tortellini; cream puddings; pizzas; pizza dough; pizza bases; toasts; fruit pastries; dough; prepared pie crust mixes; flavourings, other than essential oils, for cakes; cakes; fruit cakes; pancakes; pasta; sushi; groats for human food; all the aforesaid goods in frozen and refrigerated form’.
4 The Community trade mark application was published in Community Trade Marks Bulletin No 175/2010 of 17 September 2010.
5 On 17 December 2010, the intervener, Iglo Foods Group Ltd, filed a notice of opposition, under Article 41 of Regulation No 207/2009, to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
6 The opposition was based on, inter alia, the earlier Community word mark IGLO, registered on 25 February 2008 under No 5740238, covering goods in Classes 29 and 30 and corresponding, for each of those classes, to the following description:
– Class 29: ‘Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats; frozen prepared meals; instant meals and snack products’;
– Class 30: ‘Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking powder; salt, mustard; vinegar, sauces (condiments); spices; ice’.
7 The grounds put forward in support of the opposition were those referred to in Article 8(1)(b) and (5) of Regulation No 207/2009.
8 By decision of 11 November 2011, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation No 207/2009.
9 On 4 January 2012, the applicant filed an appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.
10 By decision of 1 March 2013 (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the appeal.
11 The Board of Appeal took the view, first of all, that the relevant public, with regard to the mass-consumption food products at issue, was the average consumer in the European Union, whose level of attention was normal, if not low.
12 Next, as regards the comparison of the goods, the Board of Appeal noted that the goods covered by the mark applied for were either identical or highly similar to the goods covered by the earlier mark.
13 Concerning the comparison of the signs, the Board of Appeal found, first, as regards the visual aspect, that, while the figurative elements were not negligible in the mark applied for, the word element ‘iglotex’ played at least an independent role in it. However, due to the fact that the earlier mark coincided with the first letters of the word element in the mark applied for, and since consumers generally tend to focus on the first part of a word element, the Board of Appeal concluded that the signs were visually similar. Secondly, as regards the phonetic aspect, although the ending of the mark applied for differs from that of the earlier mark and there is a possible difference in where the stress is placed for part of the relevant public, the Board of Appeal found that, at least as regards the remainder of that public, the signs were phonetically similar. Thirdly, concerning the conceptual aspect, the Board of Appeal upheld the Opposition Division’s finding that there was a conceptual similarity for the part of the relevant public capable of identifying the common concept conveyed by the word ‘iglo’ in both the mark applied for and the earlier word mark.
14 Lastly, taking into account the normal inherent distinctiveness of the earlier mark, the Board of Appeal concluded that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.
Forms of order sought
15 The applicant claims that the Court should:
– annul the contested decision;
– annul the decision of the Opposition Division;
– order OHIM to pay the costs.
16 OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
17 The intervener claims that the Court should:
– dismiss the action;
– uphold the contested decision;
– order the applicant to pay the costs.
18 At the hearing, the applicant and the intervener withdrew their respective second heads of claim, formal note of this being taken in the minutes of the hearing.
Law
19 In support of its action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
20 First of all, the applicant submits that some of the goods at issue are only slightly similar, if not dissimilar. Next, it challenges the Board of Appeal’s assessment as regards the comparison of the signs and submits that the marks at issue cannot be considered similar, in particular visually and conceptually. The applicant also challenges the Board of Appeal’s conclusion that the earlier mark has normal distinctiveness. In conclusion, in the applicant’s view, there is no likelihood of confusion, even if the General Court should find that the signs at issue are slightly similar.
21 OHIM and the intervener dispute the applicant’s arguments.
22 Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for cannot be registered if, because of its identity with, or similarity to, an earlier trade mark and because of the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.
23 According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the perception which the relevant public has of the signs and of the goods or services in question, account being taken of all factors relevant to the circumstances of the case, including the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003 in Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, ECR, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
24 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the two marks are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009 in Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, ECR, EU:T:2009:14, paragraph 42 and the case-law cited).
25 Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods in question in that territory. However, it should be noted that, in order for registration of a Community trade mark to be refused, it suffices that a relative ground for refusal under Article 8(1)(b) of Regulation No 207/2009 exists in part of the European Union (see, to that effect, judgment of 14 December 2006 in Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, ECR, EU:T:2006:397, paragraph 76 and the case-law cited).
26 The question of whether the Board of Appeal was correct to conclude that there was a likelihood of confusion between the signs at issue must be examined in the light of the foregoing considerations.
The relevant public
27 It must be noted that the definition of the relevant public adopted by the Board of Appeal is not disputed by the parties and that there is no need to question it. In that regard, the Board of Appeal found, in paragraphs 39, 42 and 45 to 47 of the contested decision, that the relevant territory was the European Union and that, in view of the goods at issue, the relevant public was composed of average consumers of the general public, deemed to be reasonably well informed and reasonably observant and circumspect, whose level of attention was normal, if not low.
The comparison of the goods
28 According to the case-law, in order to assess the similarity of the goods or services concerned, all the relevant factors relating to those goods or services should be taken into account, including, in particular, their nature, their intended purpose and their method of use, and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as, for example, the distribution channels of the goods concerned (see judgment of 11 July 2007 in El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, ECR, EU:T:2007:219, paragraph 37 and the case-law cited).
29 While the applicant accepts that some of the goods at issue are identical, it takes the view that others are only slightly similar, if not dissimilar. It argues that the mere fact that the earlier mark covers all class headings in Classes 29 and 30 does not mean that all of the goods covered by the mark applied for are identical to the goods covered by the earlier mark. For example, it submits, the ‘powders for ice cream’ covered by the mark applied for and the ‘ices’ protected by the earlier mark, both within Class 30, are not similar. Those goods are not interchangeable, since the ‘powders for ice cream’ are semi-finished products.
30 OHIM and the intervener dispute the applicant’s assessment.
31 First of all, it must be noted that the applicant’s complaint alleging that the goods at issue are dissimilar or only very slightly similar is unsubstantiated, with the exception of its example concerning ‘powders for ice cream’.
32 Article 44(1) of the Rules of Procedure of the General Court provides that the application must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the action, even without any other supporting information (see judgment of 21 April 2004 in Concept v OHIM (ECA), T‑127/02, ECR, EU:T:2004:110, paragraph 17 and the case-law cited).
33 By simply asserting that there is no or little similarity between some of the goods concerned, without developing any specific arguments on that point or identifying the goods in question, with the exception of ‘powders for ice cream’, the applicant fails to satisfy the obligations set out in Article 44(1) of the Rules of Procedure, with the result that its complaint alleging that some of the goods concerned are dissimilar must be declared inadmissible.
34 Next, it must be pointed out, as the intervener notes, that the applicant’s argument that the Board of Appeal erred in finding that the goods at issue were identical or highly similar, solely on the basis that the earlier mark covered all the class headings in Classes 29 and 30, is based on a misreading of the contested decision.
35 In paragraph 63 of the contested decision, the Board of Appeal objected to such an approach, which had been followed by the Opposition Division, referring precisely to the judgment of 19 June 2012 in The Chartered Institute of Patent Attorneys (C‑307/10, ECR, EU:C:2012:361), relied on by the applicant in support of its line of argument. Next, in paragraphs 65 to 77 of the contested decision, the Board of Appeal carried out an in-depth examination of the comparison of the goods at issue without restricting itself solely to the class headings, contrary to what the applicant argues, and it concluded that the goods at issue were either identical or highly similar.
36 Lastly, it is apparent from paragraph 71 of the contested decision that the Board of Appeal found that, like other goods, the ‘powders for ice cream’ covered by the mark applied for were sold to the same consumers through the same distribution channels as the goods in Class 30 protected by the earlier mark, which include ‘ices’. In addition, the Board of Appeal took the view that those goods, which may also originate from the same manufacturer, are in competition with each other since, for example, the consumer may purchase those powders in order to prepare ice cream just as he may well purchase the ice cream directly as a finished product.
37 Consequently, although those goods are different in nature, as the applicant states, this cannot call into question the Board of Appeal’s finding of a high degree of similarity on the basis of the relevant considerations referred to above, in accordance with the case-law cited in paragraph 28 above.
38 In the light of the foregoing, it must therefore be held that the Board of Appeal did not err in finding that the goods at issue were identical or highly similar.
The comparison of the signs
39 The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs in question, must be based on the overall impression created by the signs, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see judgment of 12 June 2007 in OHIM v Shaker, C‑334/05 P, ECR, EU:C:2007:333, paragraph 35 and the case-law cited).
40 According to the case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (judgment of 23 October 2002 in Matratzen Concord v OHIM — Hukla Germany (MATRATZEN), T‑6/01, ECR, EU:T:2002:261, paragraph 30).
41 Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see OHIM v Shaker, paragraph 39 above, EU:C:2007:333, paragraph 41 and the case-law cited).
42 It is only if all the other components of the mark are negligible that the assessment of similarity can be carried out solely on the basis of the dominant element (judgment in OHIM v Shaker, paragraph 39 above, EU:C:2007:333, paragraph 42, and judgment of 20 September 2007 in Nestlé v OHIM, C‑193/06 P, EU:C:2007:539, paragraph 42). That could be the case, in particular, where that component is capable, by itself, of dominating the image of that mark which members of the relevant public retain in their minds, with the result that all the other components are negligible in the overall impression created by that mark. In addition, the fact that an element is not negligible does not mean that it is dominant, and by the same token the fact that an element is not dominant in no way means that it is negligible (judgment in Nestlé v OHIM, cited above, EU:C:2007:539, paragraphs 43 and 44).
43 The question whether the Board of Appeal was right to conclude that the composite mark applied for, as reproduced in paragraph 2 above, and the earlier word mark IGLO were similar must be examined in the light of those principles of case-law.
44 In the present case, as the Board of Appeal observed in paragraph 88 of the contested decision, the composite mark applied for consists of several elements. There is a light blue background with white outline, in which a white snowflake and a standing penguin are depicted, both above a thin horizontal white line separating them from the word ‘iglotex’ in capital letters. The earlier mark is composed of the single word element ‘iglo’, as is apparent from paragraph 93 of the contested decision.
– The distinctive and dominant elements of the mark applied for
45 The applicant submits that the Board of Appeal erred in relying on the case-law according to which two marks are similar where, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, since in the present case the word ‘iglo’, which is the element common to both marks, cannot be characterised as dominant. The applicant submits that the mark applied for is also composed of a dominant depiction of a penguin and the suffix ‘tex’ within the word element. In addition, the word ‘iglo’ is descriptive in respect of frozen and refrigerated goods.
46 OHIM and the intervener contest the applicant’s arguments.
47 It is apparent from paragraphs 87 to 92 and 98 of the contested decision that the Board of Appeal found that the partial depiction of a snowflake and the depiction of a standing penguin were not particularly distinctive elements in relation to goods in frozen and refrigerated form, although those elements, in particular the penguin, none the less stood out in size and position within the mark in question. In addition, the Board of Appeal took the view that the word element was clearly legible and was not small in size. Having regard to the case-law according to which word elements are, as a rule, more distinctive than figurative elements, the Board of Appeal accordingly found that the word element in question was certainly not negligible and played at least an independent distinctive role in the mark applied for.
48 It must be noted that it is thus clear from the contested decision that none of the figurative or word elements was capable on its own of dominating the image of the mark applied for or of being totally disregarded in the overall impression created by that mark.
49 It must therefore be found that the applicant’s complaint is not relevant since it is based on a misreading of the contested decision according to which the Board of Appeal found that the term ‘iglo’ was dominant.
50 The Board of Appeal analysed in detail the different aspects of the composite mark applied for, and then carried out, as is apparent from, inter alia, paragraphs 96, 98, 101 and 104 of the contested decision, an overall assessment of the signs at issue based on the overall impression produced on the relevant consumer. From that point of view, it took into account the various elements comprising the mark applied for and did not limit itself, as the applicant claims, to the sole aspect common to the two marks, namely the word element ‘iglo’.
51 By contrast, if the applicant’s argument must be understood as seeking to show that the depiction of the penguin is dominant in nature, like the suffix ‘tex’ which is quite distinctive, it must be held that the applicant does not substantiate those claims.
52 Furthermore, it must be pointed out, first, as regards the depiction of the penguin, that the Board of Appeal rightly took the view that, although that depiction is not particularly distinctive in relation to frozen or refrigerated goods, a fact which the applicant, moreover, does not deny, it was not to be overlooked because of its size and position in the sign. This does not, however, confer on that depiction a dominant nature in the overall impression produced by the mark applied for, in accordance with the case-law cited in paragraph 42 above.
53 Secondly, as regards the word element ‘iglotex’ taken as a whole, it must be noted that the applicant does not challenge the Board of Appeal’s assessment in paragraphs 90 to 92 of the contested decision, according to which that element was clearly legible in the mark applied for and not negligible in size.
54 In this regard, it must be noted that its typeface, in capital letters, is capable of attracting the consumer’s attention. In addition, it should be borne in mind that, where a trade mark is composed of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by quoting their name than by describing the figurative element of the mark (see judgment of 22 May 2008 in NewSoft Technology v OHIM — Soft (Presto! Bizcard Reader), T‑205/06, EU:T:2008:163, paragraph 54 and the case-law cited).
55 Thirdly, as regards the word ‘iglo’, the applicant’s argument that that word is descriptive with respect to frozen and refrigerated products, and therefore weakly distinctive, is not relevant since this would not imply, in any event, that it must on its own be considered negligible (see, to that effect, judgment of 27 March 2014 in Oracle America v OHIM — Aava Mobile (AAVA MOBILE), T‑554/12, EU:T:2014:158, paragraph 34 and the case-law cited). Similar considerations may be invoked with regard to the suffix ‘tex’. Even if the latter were sufficiently distinctive, as the applicant claims, the fact remains that it is simply a suffix which does not in any way stand out from the word element containing it, which, as noted in paragraph 48 above, is not dominant within the mark applied for. The applicant has, moreover, failed to prove the contrary.
56 Lastly, as regards the judgment of 6 October 2005 in Medion (C‑120/04, ECR, EU:C:2005:594), the applicability of which to the present case was discussed at the hearing, suffice it to note that that particular case-law cannot affect the obligation to carry out a global assessment of all the components of the marks at issue, in light of the principle that the existence of a likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (see judgment of 10 December 2013 in Colgate-Palmolive v OHIM — dm-drogerie markt (360º SONIC ENERGY), T‑467/11, EU:T:2013:633, paragraph 44 and the case-law cited). It is apparent from the contested decision as a whole that the Board of Appeal simply referred, in paragraph 92 of the contested decision, to the independent distinctive role of the element ‘iglotex’, without drawing any specific conclusion therefrom, both when examining the similarity of the signs and when carrying out the overall assessment of the likelihood of confusion.
57 It follows from all of the foregoing that, contrary to what the applicant submits, the Board of Appeal rightly took into consideration the overall impression created by the mark applied for in the context of the comparison of the signs at issue.
– The visual comparison
58 The applicant disputes the Board of Appeal’s finding that the signs at issue are visually similar and submits that they are dissimilar.
59 OHIM and the intervener dispute the applicant’s conclusion.
60 A preliminary point to note is that there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since those two types of mark have a graphic form which is capable of creating a visual impression (see judgment of 4 May 2005 in Chum v OHIM — Star TV (STAR TV), T‑359/02, ECR, EU:T:2005:156, paragraph 43 and the case-law cited).
61 At the outset, it must be noted that the applicant does not in any way substantiate its claim that the marks at issue produce different visual impressions.
62 The applicant limits itself to making simple assertions that the mark applied for consists of two figurative elements standing out against the blue background and is also characterised by the presence of the suffix ‘tex’ in the word element.
63 It is evident in particular from paragraph 98 of the contested decision that, during its visual comparison of the marks at issue, the Board of Appeal carried out an overall assessment of the signs, taking into account, in substance, the fact that no one of the elements comprising the mark applied for was more dominant than any other (see paragraph 48 above).
64 According to the Board of Appeal, it is apparent from that assessment that, notwithstanding the differences found to exist between the two signs, the presence of the element ‘iglo’, which represents the first four letters of the word element ‘iglotex’ and makes up the entirety of the earlier mark, had a degree of significance.
65 It must be found in that regard that, given that the element ‘iglo’, which is the sole component of the earlier mark, is included in its entirety within the mark applied for, the signs at issue are partially identical in such a manner as to create a certain impression of visual similarity in the mind of the relevant public.
66 In addition, the applicant does not challenge the Board of Appeal’s finding, derived from, inter alia, paragraph 98 of the contested decision, that the attention of consumers will focus generally on the element ‘iglo’ since it constitutes the first part of the word element of the mark applied for, that element being common to the two signs at issue.
67 Contrary to what the applicant claims, neither the addition of the short suffix ‘tex’ at the end of the mark applied for nor the presence of figurative elements, ancillary though not negligible, is sufficiently significant to be able to displace that visual similarity.
68 It follows from the foregoing that there is a certain visual similarity between the marks at issue.
– The phonetic comparison
69 In the contested decision, the Board of Appeal found that, although the mark applied for included the suffix ‘tex’ and the position of the stress, when the word was spoken, could differ for a part of the relevant public, this could not offset the existence of a similarity by reason of the presence of the four initial letters in common, at least as regards that public which did not understand the meaning of the word ‘iglo’.
70 The applicant submits that the marks at issue are dissimilar or, in any event, similar only to a certain degree, as it stated at the hearing, given that the suffix ‘tex’, containing the ‘powerful’ letter ‘x’, would not fade into the background and that the mark applied for contains three syllables, unlike the earlier mark, which has only two.
71 OHIM and the intervener dispute the applicant’s arguments.
72 According to the case-law, at the phonetic level, in the strict sense, the phonetic reproduction of a composite sign corresponds to that of all its word elements, regardless of their specific graphic features, which fall more within the scope of the analysis of the sign on a visual level (judgments of 25 May 2005 in Creative Technology v OHIM — Vila Ortiz (PC WORKS), T‑352/02, ECR, EU:T:2005:176, paragraph 42, and of 5 May 2011 in Olymp Bezner v OHIM — Bellido (OLYMP), T‑204/09, EU:T:2011:196, paragraph 42). The word elements ‘iglo’ and ‘iglotex’ must therefore be taken into account.
73 It must be held that, in referring in particular to the grounds set out in the Opposition Division’s decision, the Board of Appeal correctly concluded, in paragraph 102 of the contested decision, that the marks at issue were phonetically similar.
74 Although, as the applicant notes, the mark applied for is characterised by the presence of an additional suffix in comparison with the earlier mark, this cannot offset the similarity stemming from the sequence of letters common to the two signs, namely ‘i’, ‘g’, ‘l’ and ‘o’.
75 In addition, it must be pointed out, as OHIM notes, that two of the three syllables are identical in the marks at issue and only the syllable positioned at the end of the sign applied for, that is to say, the suffix ‘tex’, is different.
76 In this regard, it must be added, as OHIM correctly notes, that it is apparent from the case-law that the first part of a mark tends to have a greater visual and phonetic impact than the final part (see, to that effect, judgments of 7 September 2006 in Meric v OHIM — Arbora & Ausonia (PAM-PIM’S BABY-PROP), T‑133/05, ECR, EU:T:2006:247, paragraph 51, and of 3 September 2010 in Companhia Muller de Bebidas v OHIM — Missiato Industria e Comercio (61 A NOSSA ALEGRIA), T‑472/08, ECR, EU:T:2010:347, paragraph 62).
77 Consequently, the Board of Appeal acted correctly in concluding that the marks at issue were phonetically similar, having regard to the presence of the same sequence of letters within the two signs, with those letters being placed at the beginning of those signs and therefore likely to hold the consumer’s attention more.
– The conceptual comparison
78 The Board of Appeal endorsed the Opposition Division’s finding that the marks at issue were conceptually similar, inasmuch as the relevant public identified the word ‘iglo’ in the mark applied for and perceived it as referring to the concept of an igloo, that is to say, a dome-shaped Eskimo house. It noted that the word ‘iglo’ existed, in an equivalent or very similar form, in several European Union languages, in order to designate an igloo. According to the Board of Appeal, since the element ‘iglotex’ has no meaning, consumers might recognise the concept in question in the mark applied for because of the presence of the word ‘iglo’, notwithstanding the presence of the figurative elements which related to different concepts but belonged to the same group of ideas, namely snow, winter and the cold.
79 The applicant submits that the dominant depiction of the penguin is associated with the south polar region, whereas igloos refer to a type of dwelling in the north polar region of the earth. Accordingly, the applicant argues, the consumer will not be misled by the common connotation of those elements, more generally, by the idea of ‘cold’.
80 OHIM and the intervener dispute the applicant’s arguments.
81 At the outset, it must be noted that the applicant challenges the existence of conceptual similarity solely by relying on the concepts conveyed by the word element ‘iglo’ and the figurative element of the penguin respectively.
82 It must be held that that argument is unfounded, as the intervener observes, inasmuch as the applicant refers to an error in the comparison of the concepts of the igloo and the penguin, even though the Board of Appeal undertook no such comparison. In addition, it must be borne in mind, in this regard, that the applicant cannot base its line of argument on the allegedly dominant character of the depiction of the penguin, as is apparent from, inter alia, paragraphs 48 and 56 above.
83 The Court points out that, in paragraphs 104 and 105 of the contested decision, the Board of Appeal found that the marks at issue were conceptually similar owing to the perception by at least part of the relevant public of the concept conveyed by the word ‘iglo’ common to the two signs.
84 To that end, the Board of Appeal acted correctly in taking the view that the relevant public tended reasonably to break down the mark applied for, at the very least that part of the public which was able to perceive the meaning of an igloo in the word ‘iglo’. Even though, as has been noted in paragraph 39 above, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when faced with a word sign even within a composite mark, he will break it down into verbal elements which, for him, suggest a concrete meaning or which resemble words known to him (see, to that effect, judgments of 13 February 2007 in Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, ECR, EU:T:2007:46, paragraph 57, and of 12 November 2008 in ecoblue v OHIM — Banco Bilbao Vizcaya Argentaria (Ecoblue), T‑281/07, EU:T:2008:489, paragraph 30).
85 Since as OHIM notes, the word ‘iglotex’ has no meaning and breaks down into two word elements, namely ‘iglo’ and ‘tex’, the suffix ‘tex’ being an invented term for which the applicant does not indeed claim any meaning, the Board of Appeal, endorsing the Opposition Division’s findings, correctly observed that the word ‘iglo’ would probably be recognised by part of the relevant public capable of understanding its meaning. That finding applies in regard to Danish and Dutch consumers, since in their respective languages the word ‘iglo’ designates a dome-shaped Eskimo house, and also to French, English-speaking, Italian or Polish consumers as the equivalent words in their languages have a very similar spelling.
86 Consequently, the common concept relating to the igloo will probably be perceived by the consumer in the two signs at issue, thereby giving rise to a degree of conceptual similarity.
87 In addition, contrary to the applicant’s claims, the Board of Appeal did take into account the figurative elements of the snowflake and the penguin, taking the view that the underlying concepts would be immediately understood as such. The Board of Appeal also upheld the Opposition Division’s reasoning in that regard, according to which those concepts, being connected with the notions of cold, snow or winter, belonged to the same group of ideas as the concept of the igloo, which was likely to strengthen, in the relevant public’s mind, the understanding of the concept of the igloo common to both marks.
88 It follows that the Board of Appeal did not err in concluding, in paragraph 105 of the contested decision, that the marks at issue were conceptually similar. Consequently, the Board of Appeal did not err in arriving at its conclusion that the marks at issue were similar.
The likelihood of confusion
89 According to settled case-law, the global assessment of the likelihood of confusion implies some interdependence between the factors taken into account, and in particular between the similarity of the marks and the similarity of the goods or services concerned. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgment in VENADO with frame and others, paragraph 25 above, EU:T:2006:397, paragraph 74).
90 After finding that the earlier mark had normal inherent distinctiveness, irrespective of whether it had acquired enhanced distinctiveness through use, the Board of Appeal concluded that there was a likelihood of confusion between the marks at issue, taking into account the fact that they were visually, phonetically and conceptually similar, that the goods at issue were identical or highly similar, and that the relevant public had a normal, if not low, level of attention.
91 The applicant disputes the Board of Appeal’s conclusions as regards the overall assessment of the likelihood of confusion.
92 OHIM and the intervener dispute the applicant’s arguments.
93 First of all, it must be held, as is apparent from all of the abovementioned considerations and contrary to what the applicant argues, that the cumulative conditions presupposing the existence of a likelihood of confusion, namely the identical or similar nature of the goods and signs at issue, cannot be regarded as not having been satisfied in the present case.
94 However, the applicant puts forward two more specific arguments in order to challenge the Board of Appeal’s conclusion that there is a likelihood of confusion between the marks at issue.
95 In the first place, the applicant, arguing that there is no visual similarity, submits that the visual aspect is the most important aspect in the present case because the goods at issue are food products which are bought on sight by consumers.
96 Although it must be noted that the applicant bases that argument on the mistaken premiss that there is no visual similarity, it must, however, be noted that in the present case the Board of Appeal acknowledged, in paragraph 119 of the contested decision, that the visual similarity was less than the phonetic similarity.
97 In this regard, it should be pointed out that, in the global assessment of the likelihood of confusion, the visual, phonetic or conceptual aspects of the opposing signs do not always have the same weight. It is appropriate to examine the objective conditions under which the marks may be present on the market (judgments of 3 July 2003 in Alejandro v OHIM — Anheuser-Busch (BUDMEN), T‑129/01, ECR, EU:T:2003:184, paragraph 57, and of 6 October 2004 in New Look v OHIM — Naulover (NLSPORT, NLJEANS, NLACTIVE and NLCollection), T‑117/03 to T‑119/03 and T‑171/03, ECR, EU:T:2004:293, paragraph 49). It may be argued, as the applicant does, that the visual aspect is important since the goods in question are generally sold in supermarkets and displayed on shelves so that they may be examined visually by consumers.
98 None the less, as noted in paragraph 39 above, all the relevant factors must be assessed globally on the basis of the overall impression created by the marks at issue, which is what the Board of Appeal in fact did, as is apparent from paragraphs 117 to 122 of the contested decision in particular.
99 In addition, the Board of Appeal rightly took the view, next, that the fact that there was less visual similarity than phonetic similarity could not preclude the existence of a certain similarity between the signs at issue.
100 In that regard, it must be pointed out that there may be a likelihood of confusion notwithstanding a low degree of similarity between the marks, where the goods or services covered by them are very similar, thereby making it possible to observe that any differences between the signs in question are attenuated (see, to that effect, judgment of 23 October 2002 in Oberhauser v OHIM — Petit Liberto (Fifties), T‑104/01, ECR, EU:T:2002:262, paragraph 50 and the case-law cited). That analysis applies, a fortiori, when the degree of similarity between the marks at issue is not weak.
101 That is the position in the present case since, as has already been found above, the goods designated by the mark applied for and the goods covered by the earlier mark are identical or highly similar and the signs at issue are similar, thereby making it possible to observe that the visual differences between those signs are attenuated.
102 In addition, as OHIM stated at the hearing, it must be borne in mind that, during its analysis, the Board of Appeal had taken into consideration the fact that the consumer of those goods was the average consumer, whose level of attention was normal, if not low, and that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his trust in the imperfect picture of them that he has kept in his mind (judgment of 22 June 1999 in Lloyd Schuhfabrik Meyer, C‑342/97, ECR, EU:C:1999:323, paragraph 26).
103 In the second place, with regard to the distinctive character of the earlier mark, the applicant takes the view that the Board of Appeal was wrong to classify it as normal, given that the word ‘iglo’ is descriptive in respect of the refrigerated and frozen goods covered by reason of the idea of ‘cold’ with which that word would be associated.
104 In this regard, it is appropriate to refer to the case-law according to which a sign is descriptive if there is a sufficiently direct and specific relationship between the sign and the goods or services in question to enable the public concerned immediately to perceive, without further thought, a description of one of the characteristics of the goods or services in question (see, to that, effect, judgment of 17 October 2012 in MIP Metro v OHIM — J. C. Ribeiro (MISS B), T‑485/10, EU:T:2012:554, paragraph 29 and the case-law cited).
105 In the present case, it must be stated that the applicant’s argument relates only to the ‘frozen prepared meals’ and the refrigerated goods covered by the earlier mark.
106 It is apparent from paragraph 104 of the contested decision that the word ‘iglo’, which is the sole element of the earlier mark, refers to the concept of the igloo for the relevant public whose language contains either that word, or a word very closely resembling it, in order to designate an Eskimo dwelling (see paragraph 78 above).
107 Contrary to what OHIM and the intervener submit, that public, faced with the ‘iglo’ sign and perceiving the concept of an igloo conveyed by it, will be capable of linking that concept to a description of one of the characteristics of the goods at issue, within the meaning of the case-law cited in paragraph 104 above, namely their frozen or refrigerated aspect. It follows from this that the earlier mark will only be rather weakly distinctive as regards those goods in relation to the part of the public capable of understanding the conceptual meaning relating to the igloo.
108 None the less, it must be borne in mind in this regard that the finding of a weak distinctive character for the earlier trade mark does not prevent a finding that there is a likelihood of confusion in the present case. Although the distinctive character of the earlier mark must be taken into account when assessing the likelihood of confusion, it is only one factor among others involved in that assessment. Thus, even in a case involving an earlier mark of weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see judgment of 13 December 2007 in Xentral v OHIM — Pages jaunes (PAGESJAUNES.COM), T‑134/06, ECR, EU:T:2007:387, paragraph 70 and the case-law cited).
109 It must therefore be held, in the light of all of the foregoing, that, taking into account, in particular, the identical nature or high degree of similarity of the goods at issue, the elements of similarity between the marks at issue and the fact that the relevant public is the average consumer whose level of attention is normal, if not low, the Board of Appeal acted correctly in concluding that there was a likelihood of confusion between the marks at issue in the mind of the relevant public.
110 It follows from all of the foregoing considerations that the plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009 is unfounded. The action must for that reason be dismissed.
Costs
111 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
112 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by OHIM and the intervener.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders Iglotex SA to pay the costs.
Delivered in open court in Luxembourg on 23 April 2015.
[Signatures]